Exclusion of evidence obtained through torture

Illustration: Yara Kassem

Torture is routinely committed for the purposes of forcing an accused person into confessing, or providing information. The use of such information, obtained through unlawful forms of coercion, is therefore one of the root causes of torture. In many countries around the world today, State officials continue to torture and otherwise ill-treat detainees into giving them information.

To use evidence obtained through torture in any proceeding is contrary to international law and, increasingly, against domestic laws as well. The importance of a robust and effective national practice to exclude such information (an exclusionary rule) therefore cannot be underestimated in preventing reliance on tortured confessions.

Note that the exclusionary rule does not apply against a person accused of torture to prove that the statement was made (rather than admitting a statement for its truth).

Experience has shown that under torture, or even under a threat of torture, a person will say or do anything solely to avoid the pain. As a result, there is no way to know whether or not the resulting statement is actually true. This fact has been known for centuries. Even in ancient Rome, the famous jurist Ulpian condemned the use of torture as a method for obtaining reliable information. He observed that, when tortured, prisoners would say anything to end the cruelty, thus making the practice worthless as an investigative tool. It would then plainly contradict the principles of fairness to allow such a statement before a court against an accused person.

In spite of such insight, such prohibited practices have been repeated in every society since, and represent one of the most common reasons for torture today.

Removing the incentive to torture

Even if evidence obtained under torture were true (and it might be), it must still be excluded from all proceedings. If any court relies on such evidence, it provides an incentive for state officials to force a confession, creating a marketplace for torture, both domestically and overseas. Yet, if no evidence obtained through torture could be admitted, then an important incentive for such treatment is removed.

The recent attempts by several States to permit the admission of highly questionable evidence obtained from countries known to torture, in a drive to address the threats posed by terrorism, is highly problematic, and risks undermining the absolute prohibition against torture. The APT has therefore started to examine the scope of the exclusionary rule and how States can implement the rule in practice.

What a State must do

Art.15 of the UN Convention against Torture requires that any statement made as a result of torture is inadmissible as evidence.

Even where a national criminal procedure code directs that a court’s verdict cannot solely be based on an accused person’s confession, this does not discharge the need for a clear legal provision declaring that a confession obtained under torture is inadmissible.

This prohibition is typically achieved through legislation (Columbia, Finland and Turkey are examples, but many others fail to expressly prohibit it). A legal prohibition on the use of such evidence should be unconditional, and without exception; it should apply to both criminal and non-criminal proceedings; judges must have no discretion whether to admit a statement obtained by torture; and States should exclude tainted evidence obtained from third-states, even where they are not connected to the torture.

It is incumbent on each judge to make sure the evidence admitted to the court has not been obtained by unlawful means. Even if no complaint is made by an accused person, judges should be prepared to ask the prosecution to prove such evidence was not obtained by torture, or that the confession was not obtained by other measures of coercion.

If, during the course of a judicial proceeding, it is alleged, or where a judge has reason to suspect that any evidence has been made as a result of torture or ill-treatment, a separate hearing should be held to determine the admissibility of the evidence (a voir dire hearing).

Through its analysis, a court should require that the burden of proving evidence was obtained by torture or not rests with the State, which has access to the necessary evidence and the resources to conduct a proper inquiry. The Special Rapporteur for torture recommends:

“Where allegations of torture or other forms of ill-treatment are raised by a defendant during trial, the burden of proof should shift to the prosecution to prove beyond reasonable doubt that the confession was not obtained by unlawful means, including torture and similar ill-treatment.”

The State might discharge the burden by maintaining detailed detention records, providing an independent medical exam at the beginning and end of custody, and by recording or video-recording all interrogations. These records should be critically examined by a judge.

Other possible measures

In order to effectively meet the obligation to exclude evidence obtained by torture, the Committee against Torture has also stressed that supplementary measures should be considered. Various experts have suggested ways in which a State might fully exclude the use of all tortured confessions.

States could also introduce measures to:

Prevent the use of confessions as the sole evidence necessary for a guilty verdict. Such procedures invite coercion and force to extract such a confession.

Exclude all confessions made non-judicial officers, or without the presence of the detainee’s lawyer.

Exclude evidence from any interrogation that was not recorded or video-recorded.

Prohibit the use of hooding or blindfolding in interrogations.

Guarantee the right against self-incrimination, and ensure the accused is informed of this right.